Pennsylvania mulling changes to asset forfeiture program

The Pennsylvania General Assembly has proposed an overhaul to the state’s civil asset forfeiture program.

Beginning in the 1980s, the federal government stepped up its “war on drugs,” enacting several measures to stem the flow of illegal drugs across the nation. During this time, law enforcement agencies were given extraordinary powers with the hopes that they would give officers the tools to control this problem. One of such powers was civil asset forfeiture-the ability to seize assets owned by those involved in various crimes.

Pennsylvania enacted its own civil asset forfeiture laws in 1988. Although law enforcement officials maintain that such laws are necessary to strip those accused of involvement in drug crimes and other criminal offenses of resources used to commit these crimes, critics say it can be abused and is a violation of the constitutional right to due process. One judge in Pennsylvania has even gone so far to call it “state-sanctioned theft.” However, the rules regarding asset forfeiture may soon change, as two bills are pending in the Pennsylvania General Assembly that would modify when the state may seize property and how it may be used.

An overview of Pennsylvania‘s forfeiture laws

Pennsylvania’s civil asset forfeiture laws, among the most aggressive in the nation, allow the state to seize property of those accused of certain crimes (or even those that are never charged) that it alleges was used in furtherance of the crime (e.g. car used to transport drugs), or was the proceeds of the crime (e.g. house bought with proceeds of drug sale or the cash itself). Although asset forfeiture is often used against those accused of drug crimes, Pennsylvania law allows its use in several other offenses such as counterfeiting, various sex offenses and gambling.

Once the property has been seized, the owner has a difficult task of getting the assets returned, even if he or she is not convicted or never charged with a crime. Under the law, prosecutors only have to show, by a “preponderance of the evidence” (not the higher reasonable doubt standard used in criminal trials) that the confiscated property is connected with the crime. Once this has been done, the burden of proof shifts to the owner to prove that the property was not involved (or is a product of) the crime in order for it to be returned.

Forfeiture is a civil proceeding, so constitutional due process protections and rights to a court-appointed attorney do not apply as they do in criminal court. Since many do not have the financial abilities to pursue getting their property returned (or the value of property seized is not worth the effort), most of the time, the property ends up “forfeited” to the state. Once forfeited, the state may sell the property and distribute the proceeds among prosecutors and law enforcement to pay salaries and other expenses, which many say creates a conflict of interest, as it allows them to profit from it.

Philadelphia is home to some of the most aggressive seizure activity in the nation. In the city alone, 6,560 forfeiture petitions where filed during 2011. During 2002 to 2012, more than $64 million of property was seized by law enforcement in the city, which was twice the amount seized in the larger areas of New York, Los Angeles and Brooklyn combined. Unfortunately, the average citizen is not immune from facing forfeiture proceedings. According to the ACLU, only one-third of cash forfeitures during 2011 and 2013 in Pennsylvania involved someone who was actually charged with a crime.

Change may be on the horizon

Sensing the inherent injustice in the civil asset forfeiture system as it currently is, state lawmakers have introduced Senate Bill 869 and House Bill 508. If passed, the bills would not stop police from seizing property it suspects was used in (or was proceeds of) eligible crimes. Instead, the bills would require the property owners to be convicted of a crime having forfeiture as a penalty before the property may be forfeited to the state. If the property end up forfeited, the bills would eliminate the profit incentive for law enforcement by requiring any sale proceeds to be deposited into a general government fund, instead of budgets for law enforcement and prosecutors. The two bills are currently in committee and will likely be discussed further when the assembly reconvenes in September.

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